Opinion
December 18, 1928.
1. GENERAL ASSIGNMENTS: Instructions: Evidence. General assignments in a motion for a new trial in a criminal case that the court erred in rejecting competent, material and relevant testimony and in giving improper instructions, are insufficient to preserve for review such alleged errors.
2. MURDER: Intentional: Malice: Instruction for Second Degree. An instruction for murder in the second degree is authorized under the presumption which obtains where there was an intentional killing with a deadly weapon. Under such circumstances malice is presumed.
3. ____: ____: Presumption: Evidence: Instruction. Where defendant had a difficulty with deceased over a card game, a scuffle ensued, there were shots from a revolver, the deceased received a mortal wound, and defendant ran away, the trial court was authorized to give an instruction for, and the jury to return a verdict of, murder in the second degree.
4. ____: Remarks of Prosecuting Attorney: Opening Statement: Pistol. Where the information charged defendant with shooting the deceased with a pistol it was competent for the prosecuting attorney in his opening statement to say to the jury that he would show that defendant had a pistol.
5. ____: ____: ____: Acts of Wife. Error in a remark by the prosecuting attorney in his opening statement that defendant conspired with his wife and she made him a pie while he was in jail and put hack saws in it, is cured by the exclusion of all such testimony and an instruction by the court to the jury to disregard it.
6. ____: ____: In Argument to Jury: Moonshiner. A remark by the prosecuting attorney in his argument to the jury that the defendant was a "moonshiner" is not prejudicial where the evidence discloses that defendant had been convicted upon a charge of selling liquor.
7. ____: ____: Preserved for Review. Assignments that certain remarks of the prosecuting attorney were prejudicial are not for review if such remarks are preserved only in the motion for a new trial. Objections to errors alleged to have been committed during the progress of the trial should be saved at the time they were committed and exceptions saved to the rulings thereon.
8. VERDICT: Time Taken for Deliberation: Brevity. The time the jury may devote to a deliberation upon their verdict is left wholly to their judgment. A verdict cannot be assailed on the ground that the jury gave only one hour and a half to the consideration of the case before returning their verdict finding defendant guilty of murder in the second degree. The statute (Sec. 4027, R.S. 1919) says that "when the argument is concluded, the jury may either decid in court or retire for deliberation," which is but a recognition of the unlimited authority of the jury to determine for themselves whether a deliberation is necessary to enable them to render a verdict; and something more must appear to authorize the court to interfere with their verdict than an alleged brevity of deliberation.
9. ____: Compromise: Duration of Punishment. To support an assertion that some sort of arithmetical computation was made, or agreed upon, by the jury, for determining the duration of defendant's punishment, something more must be shown than mere presumptions. Where the sole ground for an assertion that the verdict assessing defendant's punishment at imprisonment for a term of fifteen years was a compromise verdict is that, after their verdict was returned, slips of paper were found on a table in the jury room, on two of which the number 10 was written, on four the number 15, on three the number 20, and on three the number 25, it cannot be held that the jurors compromised on fifteen years as the term of imprisonment because that number was found on more slips than was any other number.
Corpus Juris-Cyc. References: Criminal Law, 16 C.J., Section 2226, p. 890, n. 45; Section 2255, p. 907, n. 21; Section 2542, p. 1083, n. 38; 17 C.J., Section 3349, p. 87, n. 43; Section 3350, p. 89, n. 65; Section 3351, p. 90, n. 75; Section 3353, p. 92, n. 98; Section 3571, p. 226, n. 73. Homicide, 30 C.J., Section 350, p. 142, n. 74; Section 560, p. 314, n. 54; Section 650, p. 404, n. 93.
Appeal from Butler Circuit Court. — Hon. Charles L. Ferguson, Judge.
AFFIRMED.
McCluskey Hollis for appellant.
(1) The court erred in giving an instruction for second degree murder. There was no evidence to support such an instruction. There was complete absence of evidence to sustain malice aforethought. Malice is an essential element in murder in either degree. State v. Stoeckli, 71 Mo. 559, 64 Mo. 319; State v. Conley, 255 Mo. 185. Malice in its legal sense means a wrongful act done intentionally without just cause or excuse. (2) The court erred in permitting the prosecuting attorney in his opening argument to make statements as facts which he could and would prove by competent evidence. The statement was made over the objection of the appellant and further upon the promise to the court that the statements could be sustained with admissible evidence. The statement was continued and matter came before the jury which was highly prejudicial and damaging to the appellant's cause. The statements directly accused the appellant in attempting to make a jail delivery. The State's attorney must not in his opening statement to the jury refer to evidence or supposed facts which he cannot introduce as competent and admissible evidence. State v. Levy, 170 S.W. 1114, 262 Mo. 181. (3) When the irrelevancy and incompetency of the evidence is apparent, it is error for the court not to exclude it, though no specific objection is made thereto. State v. O'Conner, 65 Mo. 374. (4) The vindictive thrusts at the defendant by the State's Attorney in his argument were such as: "Defendant is a dangerous character; he is dishonest; he lives with a woman not his wife; he lives in a den of thieves: O! how I would like to see old Bob Richmond swinging to the end of a rope; he took that old man and woman's only support; his only purpose at the boat was to steal money from Herschel Walker and kill him." These statements were made by the State's attorney as facts shown by the evidence. Not a one of the statements is sustained in part or wholly by the evidence. When the prosecuting attorney in his argument to the jury gets outside of the record, a verdict of conviction will be set aside. State v. Spivey, 191 Mo. 87; State v. Guerringer, 265 Mo. 408; State v. Clapper, 203 Mo. 549; State v. James, 216 Mo. 394. (5) The attorney in his statements termed the witnesses thieves, poker players and bootleggers. These statements were made in a general nature and no names were called. Such statements as this, "How can one believe a person who is a bootlegger, a poker player, a thief, one who lives in the hell hole of Butler County?" It is improper for the prosecuting attorney to apply epithets to the accused or the accused's witnesses. State v. Rasco, 239 Mo. 535. (6) The time taken by the jury in rendering the verdict does not show that they gave the instructions given to them by the court any consideration or sufficient consideration as to enable them to have a full understanding of the law in the case. The shortness of the time used by the jury shows that the defendant did not have his rights considered under the instructions given.
Stratton Shartel, Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent.
(1) The most of the assignments are insufficient and under the rulings of this court will not be considered. State v. Standifer, 289 S.W. 858. (a) The motion for new trial does not complain of the instructions given. Therefore, it is not necessary for the court to review them. Sec. 4079, Laws 1925, p. 198. (b) However, the instructions given by the court are not subject to criticism. Instruction number two, on murder in the second degree, is in an approved form. State v. Allister, 295 S.W. 755; State v. Bauerle, 145 Mo. 18. (2) Notwithstanding the appellant did not include in his motion for new trial any objection at all to the instructions given, his first point is that the court erred in giving an instruction on second degree murder because there was no evidence to support it, in that there was no evidence of malice. This was a matter for the jury to determine from all the facts in evidence. The authority cited by the appellant decides the point against him. State v. Lane, 64 Mo. 323. The record shows that there was substantial evidence to the effect that the defendant had a difficulty with deceased over a card game; that a scuffle ensued; that there were shots from a revolver; that the deceased received a mortal wound; that the defendant ran away. State v. Concelia, 250 Mo. 424. (3) The answer to all the remarks of the prosecuting attorney most complained about do not appear in the record. It will be noted by referring to the bill of exceptions, that the only thing set out concerning the argument of the prosecuting attorney is a reference to the defendant as a moonshiner and in reference to the witness Dan Hooper as a moonshiner. It was proven that the defendant had been convicted on a charge of selling liquor. Therefore, the statement that he was a moonshiner was justified by the evidence. The statement that a witness was a moonshiner could not be prejudicial to the defendant. And moreover the appellant did not include either one of these complaints in his motion for new trial; therefore, they will not be considered by this court. The whole complaint against the argument of the prosecuting attorney appears only in the motion for new trial and nowhere else in the record. Therefore, this complaint is not properly before this court. State v. Lloyd, 217 S.W. 27; State v. Ellis, 290 Mo. 231. (4) The appellant makes the unusual complaint that the jury was out only one and one-half hours. The answer to the foregoing is that the statute does not require the jury to deliberate for any specific length of time. On the other hand, the statute provides that "when the argument is concluded, the jury may either decide in court or retire for deliberation." Sec. 4027, R.S. 1919. (5) The appellant further attacks the verdict on the ground that the jurors, being tired, instead of deliberating, adopted a plan of arriving at a verdict by writing numbers on slips of paper. He does not go into details on this point in his motion for new trial. It is true that the finding of a verdict by a jury by means of drawing numbers is such misconduct as will invalidate it. State v. Branstetter, 65 Mo. 149. But there must be proof of such misconduct. State v. Long, 201 Mo. 677. The affidavit submitted is not sufficient proof. State v. Linn, 223 Mo. 110.
The appellant was charged by information in the Circuit Court of Butler County with murder in the first degree in having shot and killed one Herschel Walker. Upon a trial to a jury he was convicted of murder in the second degree and his punishment assessed at fifteen years' imprisonment in the penitentiary. From this judgment he appeals.
The appellant, the deceased and several others were living at the time of the homicide in house-boats on Black River. On the night of September 27, 1927, several of these persons, including the appellant and the deceased, were playing cards for money in a houseboat belonging to a man named Peoples. Finally all of the players, except the appellant and the deceased, dropped out of the game. The appellant charged the deceased with cheating and grabbed the money on the table. A scuffle ensued and the deceased, who was a much larger and stronger man than the appellant, caught the latter by the head and shoulder and pushed him to the edge of the boat, which had no railing around the deck. Just as the appellant reached the edge of the boat two shots were fired, and the deceased fell backward and expired from the effect of the shots. The appellant fled, saying to someone in his flight that he was in trouble and was going away. He was subsequently arrested in an adjoining county. No weapons were found on the deceased and no witnesses testified to having seen a weapon in the hands of the appellant. Two or three witnesses testified that they saw the flash when one of the shots was fired and the shirt of one of the witnesses who was standing close to the appellant at the time was set on fire by the flash. The appellant denied that he shot the deceased. He testified that he and the deceased had a little dispute during the game, and that the deceased rose to his feet, hit the appellant and staggered him back towards the door; that he did not shoot the deceased; that the only gun he saw was in the hand of the deceased after they reached the door; that as the deceased drew the weapon appellant struck it and it fired; that deceased drew it again and the appellant again struck and it went into the river.
Appellant complains of the giving of an instruction for murder in the second degree; of improper statements made by the prosecuting attorney; of the short time occupied by the jury in reaching a verdict and that the verdict was improperly reached by drawing numbers.
I. In the motion for a new trial it is contended that the giving of an instruction for murder in the second Instructions. degree was error. The language of the motion, so far as concerns the instruction and the admission or refusal to admit testimony, is as follows:
"Because the court erred in refusing to give the instructions offered by the defendant, number of instructions are marked, REFUSED.
"Because the court erred in admitting incompetent evidence on the part of the State over the objections of the defendant and exceptions.
"Because the court erred in refusing to admit competent and material testimony on the part of the defendant."
Section 4079, Revised Statutes 1919, as amended Laws 1925, page 198, provides, among other things, that "the motion for a new trial shall be in writing and must set forth in detail and with particularity in separate numbered paragraphs the specific grounds or causes therefor." We have found it necessary in many cases since the adoption of that amendment to construe the same. In so doing we have uniformly held that general assignments in a motion for a new trial that the court erred in rejecting competent, relevant and material testimony and in giving improper instructions are insufficient to preserve for our consideration these alleged errors. [State v. Bailey, 8 S.W.2d 57; State v. Benson, 8 S.W.2d 49; State v. Taylor, 8 S.W.2d 29; State v. Gentry, 8 S.W.2d 20.]
Ignoring the fact that this motion is insufficient to require us to review the errors complained of, we have nevertheless examined the instructions and the testimony that the appellant may not be deprived of a consideration of whatever merit there may be in his contentions. The evidence was sufficient to authorize an instruction for murder in the second degree. Especially is this true under the presumption which obtains where, as in this case, there was an intentional killing with a deadly weapon. [State v. Eaton, 316 Mo. l.c. 1003 and cases.] Under such circumstances malice is presumed. [State v. Larkin, 250 Mo. l.c. 247 and cases; State v. Kyles, 247 Mo. l.c. 647 and cases; State v. Lane, 64 Mo. 319.]
The sufficiency of the testimony may be more readily determined by a synopsis of the same as follows: The defendant had a difficulty with the deceased over a card game; a scuffle ensued; there were shots from a revolver; the deceased received a mortal wound; the defendant ran away. In view of this record, the following authority applies:
"As a court of errors, it is not, as a rule our duty to pass upon the facts of a case. Where there exists upon the record, what has been rather loosely called any `substantial evidence' of the existence of a state of facts legally required to be shown, it is our duty to relegate the determination of controverted questions to the triers of fact. `The rule is, that before this court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is, that the verdict is the result of passion, prejudice or partiality'" [State v. Concelia, 250 Mo. l.c. 424.]
II. It is contended that error was committed in overruling the appellant's objections to statements of the prosecuting attorney in his opening statement to the jury. The major Remarks of portion of the appellant's contentions in this Prosecuting behalf are not preserved in such a manner as to Attorney. entitle them to a review.
The portion of same which has been properly preserved is as follows:
"1. We object to that statement of the prosecuting attorney that he is going to show the defendant had a pistol.
"2. We object to that statement that the defendant conspired with his wife and she made him a pie while he was in jail and put hack saws in it."
As to the first contention, the evidence showed that the appellant was charged with shooting the deceased with a pistol. It cannot be gainsaid, therefore, that it was competent to show that the appellant had a pistol.
As to the second contention: Testimony offered to show that the wife had made a pie for appellant containing hack saws, while he was in jail, was excluded by the court and the jury was instructed to disregard it. Prejudicial error, if any existed, was thereby eliminated.
Another complaint is made as to the prejudicial remarks of the prosecuting attorney in his opening argument that the appellant was a "moonshiner." The testimony disclosed that the appellant had theretofore been convicted upon a charge of selling liquor. We set this forth to demonstrate its lack of merit as prejudicial error. It may be said as dispositive of these and other assignments concerning the remarks of the counsel for the State that they are preserved only in the motion for a new trial.
It is a cardinal rule in appellate procedure, that objections to errors alleged to have been committed during the progress of the trial should be made at the time and exceptions saved to the rulings of the court thereon. Further than this, such exceptions must be preserved in the motion for a new trial (in criminal cases) in the manner and with the particularity required in the amendment of 1925, supra.
In State v. Lloyd, 217 S.W. (Mo.) l.c. 27, we held in regard to this particular ground of error that "it is an invariable rule in this State, announced by this court in numerous well-considered opinions, that when complaint is made of matter of this sort, based, as here, upon the recitals in the motion for a new trial and not otherwise shown, the alleged error is not properly presented and will not be considered. [State v. Schrum, 255 Mo. 273, l.c. 280, 164 S.W. 202; State v. Jeffries, 210 Mo. 302, l.c. 337, 109 S.W. 614, 14 Ann. Cas. 524; State v. Zorn, 202 Mo. 12, l.c. 44, 100 S.W. 591; State v. Doyle, 107 Mo. 36, l.c. 44, 17 S.W. 751.]" [See, also, State v. Ellis, 290 Mo. 219, 230, 234 S.W. 845.]
III. The validity of the verdict is assailed on the ground that the jury gave only one and a half hours time to the consideration of the case before returning a verdict. This contention Verdict. assumes, on what basis or by what process of reasoning we are unable to determine, that one and a half hours deliberation is not sufficient to enable a jury to render an intelligent verdict. The Legislature in its wisdom has seen fit in defining the powers of a jury to declare that "when the argument is concluded, the jury may either decide in court or retire for deliberation." [Sec. 4027, R.S. 1919.] This statute is but a recognition in other words, of the unlimited authority of the jury to determine for themselves whether a deliberation is necessary to enable them to render a verdict. The time they may devote to such deliberation if the same is deemed necessary, is left wholly to their judgment. Something more must appear therefore to warrant an interference with a verdict than an alleged brevity of their deliberations. To hold otherwise would be to interfere with their consideration of the facts, in which they are as independent of the court as the judge is of the jury in determining the law.
It is further contended that the manner in which the jury, after having found the appellant guilty, determined his punishment, constituted prejudicial error. This contention is sought to be supported by the affidavit of one E.M. Munger, a practicing attorney not connected with the case, who states that after the jury returned their verdict he went into the room where they had been deliberating and found on a table twelve small slips of paper, each having written thereon a figure. The number "10" was written on two of these slips; the number "15" was written on four; the number "20" was written on three; and the number "25" was written on three.
The contention in this regard is presumably intended to charge that the jury, after having regularly reached a conclusion as to the appellant's guilt, determined the extent of his punishment by chance or a compromise verdict. We limit this contention to a presumption because the motion for a new trial contains no affirmative allegation as to the jury's misconduct. It is as follows:
"Eleventh. Because the verdict as shown in exhibit takes on this appearance: That the jury found defendant guilty and in finding the sentence found the largest number who were of the same opinion and then at once came to that number and within their verdict for the purpose of relieving themselves from the custody of Sheriff and jury duty as soon as possible, they having been held together forty hours counting time for trial and deliberation."
It is evident from the language employed in this assignment that the charge is only made by implication. This will not suffice to entitle the matter to a review. No question is raised as to the regularity of the jury's proceedings in finding the appellant guilty. Having so found it is assumed, on account of the unexplained slips of paper alleged to have been found in the room where the jury's deliberations were had, that some sort of arithmetical computation was made to determine the duration of his punishment. To sustain this charge something more tangible than mere presumptions must be submitted in support of the same. In the absence of any evidence to the contrary we are authorized, as we are in regard to the regularity of other judicial proceedings, in presuming, not that the jurors in fixing the appellant's punishment resorted to chance or an arbitrary system of computation, but by an exercise of judgment resulting from a weighing of the evidence. We are not unmindful of the fact that, where the question of a jury's misconduct in relation to the matter here under review has been clearly and affirmatively shown, the court is authorized in setting aside the verdict. We so held in State v. Branstetter, 65 Mo. 149. In that case it was affirmatively charged and clearly shown that the jury, in determining as to their verdict, first agreed that "each should set down on a slip of paper the term for which he thought the defendant should be confined in the penitentiary, and then divide the aggregate of these figures by twelve and make the quotient their verdict; that this agreement was carried out, and the result was the verdict returned into court" (p. 152). The sole ground on which the contention is made in the instant case is that the slips of paper were found in the room where the jury had been deliberating. We submit without more that a charge of a jury's misconduct having no other foundation than presumptions cannot, in reason, under precedent and with a proper regard for the enforcement of the criminal law, be sustained.
No error appearing authorizing a reversal the judgment is affirmed. All concur.